JAMES E. BALLARD, HUSBAND, APPELLANT,
v.
MELISSA G. BALLARD, WIFE, APPELLEE
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In this dissolution of marriage appeal, the First District Court of Appeal affirmed in part and reversed in part the trial court's determinations regarding equitable distribution, alimony, child support, and attorney's fees. The court found that the trial court erred by including pre-marital furniture and a depleted credit union account in equitable distribution without evidence of intentional dissipation, misinterpreted precedent regarding mortgage paydowns on non-marital property, and failed to properly impute income for child support purposes.
The court reversed the inclusion of pre-marital furniture and the $42,012 credit union account without findings of intentional dissipation, held that mortgage paydowns using marital funds create marital assets subject to distribution, affirmed the denial of alimony, reversed the retroactive child support award without deducting paid health insurance premiums, and reversed the failure to impute income based on the husband's voluntary retirement. The court remanded for reconsideration of property division and attorney's fees.
[1] A trial court abuses its discretion by including in equitable distribution furniture that belonged to a spouse before the marriage and is not disputed by the other spouse…
[2] Sums diminished during dissolution proceedings for purposes reasonably related to the marriage, such as attorney's fees, should not be included in equitable distribution…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Sums that have been diminished during dissolution proceedings for purposes reasonably related to the marriage, such as attorney's fees for the dissolution, should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.”
Establishes the rule for handling depleted marital assets in equitable distribution, requiring findings of intentional misconduct.
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Join FLexlaw to unlock all legal intelligenceJames and Melissa Ballard dissolved their marriage. During the proceedings, the husband used $20,000 from an Eglin Federal Credit Union account to pay…
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James E. Ballard appeals and Melissa G. Ballard cross-appeals a final judgment of dissolution of marriage in which the trial court determined issues of equitable distribution, alimony, child support, and attorney’s fees. We affirm in part, reverse in part, and remand for further proceedings.
Equitable Distribution
The trial court abused its discretion by including within the equitable distribution scheme certain furniture that belonged to the husband before the marriage, which the wife does not dispute.
The court also abused its discretion by including $42,012 from the Eglin Federal Credit Union account that had been significantly diminished by the time' of trial, without any finding that the husband had used the assets improperly. The husband testified that he had used $20,000 from the account during the proceedings to pay his attorney, and the trial court acknowledged in the final judgment that the husband claimed there were no longer any funds in the account. Sums that have *643been diminished during dissolution proceedings for purposes reasonably related to the marriage, such as attorney’s fees for the dissolution, should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage. See, e.g., Zvida v. Zvida, 103 So.3d 1052 (Fla. 4th DCA 2013). In that event, the trial court must make a specific finding of intentional misconduct. Id. at 1055. Accord Lopez v. Lopez, 135 So.3d 326 (Fla. 5th DCA 2013); Bateh v. Bateh, 98 So.3d 750 (Fla. 1st DCA 2012); Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991); Bush v. Bush, 824 So.2d 293 (Fla. 4th DCA 2002).
We affirm without comment the court’s valuation of the wife’s 2008 Dodge Caravan based upon its trade-in value, and the bank balance and value of inventory from the husband’s gun business as stated on his financial affidavit.
The trial court erred as a matter of law when it construed Kaaa v. Kaaa, 58 So.3d 867 (Fla.2010), to exclude the amounts the parties paid down on the mortgage as a marital asset. When marital assets are used during the marriage to reduce the mortgage on non-marital property, the increase in equity is a marital asset subject to equitable distribution. See, e.g., Gaetani-Slade v. Slade, 852 So.2d 343 (Fla. 1st DCA 2003); Spence v. Spence, 669 So.2d 1110 (Fla. 1st DCA 1996); Massis v. Massis, 551 So.2d 587 (Fla. 1st DCA 1989); Heiny v. Heiny, 113 So.3d 897 (Fla. 2d DCA 2013); Dwyer v. Dwyer, 981 So.2d 1254 (Fla. 2d DCA 2003); Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003); Cole v. Roberts, 661 So.2d 370 (Fla. 4th DCA 1995); Adkins v. Adkins, 650 So.2d 61 (Fla. 3d DCA 1994).
The decision in Kaaa did not affect this general rule, and, in fact, it left undisturbed a holding from the lower court based on this general rule. The only question at issue in Kaaa was whether passive appreciation in the value of non-marital property by market forces alone constitutes a marital asset subject to distribution, and the court concluded that it does.
In Kaaa, the parties resided during their marriage in the home the husband had purchased before the marriage. They used marital funds to pay down the mortgage and to renovate the carport, and the latter slightly increased the value of the home. The trial court determined that the mortgage reduction and increased value of the carport constituted an “enhancement value” that was subject to equitable distribution, but that the significant passive appreciation in the value of the home due to market forces was not. The Second District affirmed but certified conflict with this court’s decision in Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995). In Stevens, this court had concluded that both types of increased value should be equitably distributed.
Equitable distribution of marital assets should take into account the appreciated value of a non-marital asset caused by the expenditure of marital funds or labor, including the parties’ management, oversight, or contribution to principal, as well as an appropriate portion of any appreciation of a non-marital asset caused by the effects of inflation and market conditions!)]
The supreme court in Kaaa agreed with this court in Stevens and reversed the Second District’s decision in Kaaa. Neither the Second District nor the supreme court in Kaaa disturbed the trial court’s determination that the increase in equity resulting from paying down the mortgage with marital funds constitutes a marital asset subject to equitable distribution.
*644 Alimony
The husband fails to show that the trial court abused its discretion by imputing income to him when denying his request for alimony. In fact, the court did not impute income to him, but instead merely found that his retirement was voluntary and that he has a greater earning capacity than the wife.
Nor was the trial court required to make findings of fact supporting its denial, beyond its finding that neither party had an actual need for alimony or maintenance, as required by section 61.08(1), Florida Statutes (2012). The court would have been required to make findings based upon the factors in section 61.08(2) only if the court had concluded that one of the parties was entitled to alimony. See, e.g., Broemer v. Broemer, 109 So.3d 284 (Fla. 1st DCA 2013).
Child Support
The trial court abused its discretion in awarding retroactive child support to the wife without taking into account that the husband had paid some of the children’s health insurance premiums. The trial court acknowledged in the final judgment, and the wife concedes on appeal, that the husband paid for the children’s health insuranee-between July and December 2012. The trial court should have deducted the amount the husband paid from the retroactive child support he owes the wife.
The trial court also abused its discretion by determining the amount of the husband’s child support obligation without imputing income to him. Section 61.30(2)(b), Florida Statutes (2012), provides that “[mjonthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control.” The trial court expressly found in the final judgment “that the Husband’s retirement from Civil Service in April 2012 was voluntary,” and that he “did not present any medical testimony that his retirement was not voluntary.” Having made these findings, the court was required to go through the process outlined in the remainder of subparagraph (2)(b) to determine the amount of income to impute to the husband. See Hentze v. Denys, 88 So.3d 307, 311 (Fla. 1st DCA 2012). See also Cash v. Cash, 122 So.3d 430 (Fla. 2d DCA 2013); Burkhardt v. Bass, 711 So.2d 158 (Fla. 4th DCA 1998).
Because the trial court will be reconsidering the division of property based upon these issues on remand, the parties’ need for and ability to pay attorney’s fees will require reconsideration as well.
Affirmed in Part, Reversed in Part and Remanded.
PADOVANO, WETHERELL, and MAKAR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schroll v. Schroll, 227 So. 3d 232 (Fla. 1st DCA 2017)…d to the marriage ... should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.” Ballard v. Ballard, 158 So. 3d 641, 642-43 (Fla. 1st DCA 2014) (citing Zvida v. Zvida, 103 So. 3d 1052 (Fla. 4th DCA 2013)); see also Winder v. Winder, 152 So. 3d 836, 838 (Fla. 1st DCA 2014) (trial court abused its discretion by .including dissipated funds in the equitable distribut…
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Somasca v. Somasca, 171 So. 3d 780 (Fla. 2d DCA 2015)…s or other forms of marital assets, or both.”); Mitchell v. Mitchell, 841 So. 2d 564, 567 (Fla. 2d DCA 2003); Cornette v. Cornette, 704 So. 2d 667, 668 (Fla. 2d DCA 1997); Straley v. Frank, 612 So. 2d 610, 612 (Fla. 2d DCA 1992); Ballard v. Ballard, 158 So. 3d 641, 643 (Fla. 1st DCA 2014); Cole v. Roberts, 661 So. 2d 370, 372 (Fla. 4th DCA 1995). In response, the Husband argues that the evidence showed that the value of the Queens building had decreased during the marriage instead of appreciating. Therefore,…
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Bridgett Betts v. Betts, 235 So. 3d 958 (Fla. 2d DCA 2017)…ssets are used during the marriage to reduce-the mortgage on [nonmarital] property, the increase in equity is a marital asset subject to equitable distribution.” Somasca v. Somasca, 171 So. 3d 780, 783 (Fla. 2d DCA 2015) (quoting Ballard v. Ballard, 158 So. 3d 641, 643 (Fla. 1st DCA 2014)). It was undisputed that the former husband contributed $350 per month toward the mortgage on the former wife’s premarital duplex from the date the parties were married in November 2004 until the date the former wife’s side…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Adkins v. Adkins, 650 So. 2d 61 (Fla. 3d DCA 1994)
- Akers v. Akers, 582 So. 2d 1212 (Fla. 1st DCA 1991)
- Franz Edward Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003)
- Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010)
- Broemer v. Broemer, 109 So. 3d 284 (Fla. 1st DCA 2013)
- Bush v. Bush, 824 So. 2d 293 (Fla. 4th DCA 2002)
- Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1st DCA 1995)
- Massis v. Radi S. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989)
- Heiny v. Fran Pupello Heiny, 113 So. 3d 897 (Fla. 2d DCA 2013)
- Cole v. Roberts, 661 So. 2d 370 (Fla. 4th DCA 1995)